January 28, 2008

"No Legal Process"

A vow to give the boot to criminal aliens has become an almost daily part of the New York senator's presidential campaign spiel on overhauling the immigration system.

"Anybody who committed a crime in this country or in the country they came from has to be deported immediately, with no legal process. They are immediately gone," Mrs. Clinton told a town hall meeting in Anderson, S.C., Thursday. On Wednesday, she told a crowd in North Bergen, N.J., that such criminals "absolutely" need to be deported. A day earlier, she told a rally in Salinas, Calif., that aliens with criminal records "should be deported, no questions asked."

Mrs. Clinton does not raise the subject in every speech, but her tough talk on the issue dates back at least to the Iowa caucuses last month, where she told the mother of a woman killed by a foreigner in a car accident that illegal aliens who have committed crimes need to be sent home "immediately."

"No legal process," the New York senator said at a forum in Tipton, Iowa, according to a political news outlet, the Politico. "You put them on a plane to wherever they came from."

If you read the full article, she does not, in fact, seem to be suggesting summary deportation in violation of the 14th5th amendment of any immigrant with a criminal conviction. This is just an applause line. But it reflects EXACTLY what I fear about the Clintons: the voters are anti-immigrant this year? Throw in an applause line about putting people on a plane without legal process. The 1992 voters are pro-death penalty? Well, then you'll make sure everyone sees you at the Rector execution. 1996 voters are anti-immigrant? Well, you better sign that mean anti-immigration law that Congress passed. Anti-crime? Well, you better sign those limits on habeas appeals. Voters in 2002 want vengeance for September 11 on whichever Muslim country is convenient? Well, you better vote for the war. Votersloves 24? Well, you better not take a clear stand against torture. Voters in 2004 are anti-gay? Well, John Kerry should obviously endorse some states' anti-gay-marriage amendments. And you certainly shouldn't say anything about the racial disparity in drug sentencing; what if they call you pro drug dealer? You can't vote for a law to help refugee victims of terrorism; what if they call you pro terrorist?

Most of those examples are Bill Clinton, & I try to convince myself that Hillary Clinton's more scrupulous--but you know, the people she's listening to are Mark Penn & Bill Clinton. And she uses "no legal process" as an applause line during the Democratic primaries. Say what you will about Obama making vague appeals to bipartisanship and being soft on Ronald Reagan--you will not catch him doing that. And you won't ever find Clinton talking like this.

Oh, it's just words, but Presidential campaigns are almost nothing but words, and photo-ops. And there's a clear enough link to their records in office.

Well, it implicates the citizenship provisions of the 14th, as well as the procedural rights guaranteed by the 6th, 7th, maybe 8th... but it all starts with the 5th. Regardless, it's a pretty messed up statement.

Doesn't this seem like a statement that might, you know, turn off Hispanic/Latino voters? Hillary's campaign continues to baffle me.

Meanwhile, this is how the Korea Times describes travel within our country.

Recently, at airports in Tampa, Fla. and Texas, agents from U.S. Customs and Border Protection (CBP) began questioning passengers boarding domestic flights who “appear to be foreigners,” Korea Times reports. If the traveler is found to be a non-U.S. citizen, agents demand documents proving the person’s legal status and verify them on site. If it is determined that the person doesn’t have a legal right to stay in the U.S., or he can’t produce a valid visa or green card, CBP detains him and begins the deportation process...

I am among those who will never forgive Bill for signing "welfare reform" -- the poor women and children disappearance act -- so all this fits. These people seem to have no objection to authoritarianism as long as it their authoritarism.

Now that's some scary stuff. The idea that any Democratic candidate could in 2008 seriously suggest that the absence of legal process is a good idea...this is someone who's learned nothing of fundamental importance since 2000.

How does Hillary know that the people being deported are being properly deported if there is no legal process? Is she willing to deport American citizens to make certain that we don't waste time on such trivialities?

One would think she ought to be happy with her large Hispanic support. Who is she trying to win over with these stupid, scary comments? Republicans who already can't stand her? Every new thing I hear about HDC seems to be just worse and worse.

More and more, the bottom line for me is that Clinton consistently does and says things that leave me asking, "what in the world are you thinking?" whereas with Obama I often think "hey, that was a good move -- I would have never thought of that." Maybe I'm just not a big smarty smart guy like Mark Penn, but right now all I see is an attempt to run out the clock, not any sort of brilliant grand strategy.

Back in his heyday, Bill Clinton would do things that made me think, "Wow, that was smooth." But once it got into my head that I might just be assuming that Hillary was a good politician, I realized that that she hasn't done a whole lot that's made me react that way. I can't handle another nominee that leaves me yelling at my television in frustration.

This may be obvious, but there are two reasons this is almost perfectly calculated to drive me crazy:

(1) Bill Clinton signed bills in 1996 that, in addition to limiting political asylum & others forms of immigration relief, and cutting off federal funds to legal services agencies that serve immigrants, drastically increased the # of crimes that will get you deported, barred from asylum, etc. "Deport the criminals!" sounds great in theory, but when you're wondering if you actually have to draft a deportation order for someone who came to the United States as a six month old based on a fairly petty conviction, & reading the "don't deport my daddy!" letters in his file, it looks rather different. When you're trying to avoid having to draft an opinion that sends someone to rot in a godawful Haitian prison because of a marijuana conviction he got in high school, it looks rather different. Now, if you're talking about felonies & people who are here illegally to begin with, that's another thing; I don't mind the Z visa restriction she's talking about & I don't think any candidate opposes it. But there's a real possibility of Congress passing some crappy, mean, immigration bill at some point during the next 4 years, & I have zero confidence that she'd fight them on it.

(2) Where have I heard the circular "we don't need a legal process because they're bad people and don't deserve it!" argument before? Hmm....

Interesting. If Obama, using Clinton's own words, said she supporting dropping due process, she would complain of being taken out of context and how the rest of her statement qualifying what she said was not mentioned.

Granted, she is talking, supposedly, of deportation after actual finding of guilt in terms of the criminal act. And that is a debatable issue, but different from the applause lines.

However, I don't think Obama should use this as an issue, but rather let those groups, particularly in the latino community, who find her remarks offensive, use the.

It seems especially odd that she's making hay out of this seeing as immigration hasn't worked as a political motivator. It certainly hasn't worked for the Republicans, who have McCain sounding almost reasonable on immigration close to the lead, while most of the rest who wanted to build a fence protected by fire-breathing alligators have fallen by the wayside.

The Clintons are usually better about staying away from non-winners of issues. What's happened to them?

Ok, dumb question of the day, probably, but...if a person, regardless of his or her country of origin and citizenship, is accused of a crime in the US, shouldn't he/she be arrested and tried for that crime in the US and, if convicted, go to prison in the US? Deporting them seems like dumping our problems on someone else rather than dealing with them. Anyone know if any of the still active dem candidates has a sane immigration policy proposal?

Sheesh. -- I don't have a problem with restrictions on visas either. But the very idea of saying that X will be done to anyone who commits a crime, "with no legal process", just makes me think: so how, exactly, are we supposed to be sure they have, in fact, committed a crime? Even the criminal record thing: there are certainly enough laws overseas that are vile that I'd want to ask exactly which law the person broke. (I'm thinking of the fact that for years, speaking Kurdish was against the law in Turkey. would being convicted under that law make someone instantly deportable?)

Dianne: Obama's & Clinton's immigration policy proposals are both eminently sane & not all that different except things like the hot-button driver's license issue. I have a vague sense that he was a little more active on behalf of the McCain Kennedy bill & that may partially explain the Kennedy endorsement, but don't quote me on that. He has promised to introduce legislation on it his first year in office; she has not. My worry about her is not policy-based--she knows, I think, what ought to happen. It's a question of politics: I do not trust her to take the risk of introducing the bill when anti-immigrant sentiment runs high, & I don't trust her to veto bills or oppose amendments of the sort that Tancredo & pals support.

In general, if someone commits a serious crime, we deport them after they serve their sentence, & I think that ought to continue. There are problems with it: the deportation of large #s of immigrant gang members from the U.S. has helped well & truly screw up El Salvador, Honduras, & Guatemala. But obviously, it's legitimate to want to deport violent criminals; it's a tricky & depressing problem.

I never took calculus, but nearly every time I see candidates on the tube taking questions from voters, immigration comes up and whether it is a Democratic or Republican crowd, it is clear that Tancredo has framed the debate.

In some tortured sense, I think the Clintons are so certain that Super Tuesday will go their way that they are already looking ahead and running to the right of McCain on the issue, figuring perhaps that they can cause HIM damage in the Republican primary, since so many on the right wing brand McCain as a liberal on this and other issues.

The Clintons are afraid of McCain.

More generally speaking, it is no small matter that a good portion of the American people find the words "no legal process" so soothing in so many contexts.

The American people have rarely been so ripe for demagoguery. You'd think Jonah Goldberg would be happy that fascist rhetoric now infests both parties and that no small number of the electorate share his single brain cell and hate the idea of "process" for anyone who isn't them.

Baby Jesus in the manger. She has no idea what on God's green earth she's talking about. Deportation IS the legal process. That's how it works. What, she's advocating rounding up people who are here illegally... and just having Officer Krupke drive them over the border?

Her policy may be sane but pretending that deporting someone is something you order up like pizza service does no one any favors.

(Number of times I had to edit this comment to remove naughty words: 4.)

But the very idea of saying that X will be done to anyone who commits a crime, "with no legal process", just makes me think: so how, exactly, are we supposed to be sure they have, in fact, committed a crime? Even the criminal record thing: there are certainly enough laws overseas that are vile that I'd want to ask exactly which law the person broke.

Besides laws like the one you mentioned, if we immediately and without further process deport everyone with a "criminal record" (does that mean anyone convicted of a crime or are those accused and not yet tried included?) all Evil Dictator X has to do to get back his/her escaped political opponents is to claim that said opponent committed a crime: if no further process occurs then how can we know whether the charges are real or invented?

This is my (politically unrealistic) idea for an immigation policy:
1. Anyone who gets to the US who has no outstanding warrents for his/her arrest either in the US or his/her home country is admitted as a legal immigrant. If s/he does have an outstanding warrent, s/he can apply for immigrant status and an investigation is done. If it is determined that the "crime" in question is speaking Kurdish or saying something nasty about some dictator or if the crime s/he is accused of is eating babies but there is no evidence whatsoever that any babies are missing, muchless that s/he ate them, then s/he is admitted.
2. Anyone who lives in the US as a legal immigrant for at least 5 years without coming to the negative attention of the government (got arrested, applied for welfare, etc) becomes a citizen is s/he wants to. If s/he did then s/he can apply but isn't automatically granted citizenship. (My idea for whose application is accepted is basically: violent crime--out after sentence is completed; minor property crimes or long-term government support-get another 5 year trial; short term government support or traffic ticket level criminal record--welcome to the US.)

Because, basically, very few people who are lazy or stupid can even manage to get to the US. The ones who show up here are generally bright, willing to work, and often skeptical of the government (i.e. got into trouble for political activism in their home countries). In short, exactly the people you want for a capitalist democracy. Yeah, some people you don't want are going to try to get in too, but why punish the majority for the crimes of a small minority?

Shorter Katherine: How DARE Hillary Clinton behave as though the United States of America is a democracy!

All qualms about trolls and their feeding aside: the United States is not a democracy. It is, as someone once said, a nation ruled by laws and not by men, and one cannot ignore the Constitution or deprive people of, for example, their right to due process, even if it's currently popular, or seems like a good idea, to do so. Many conservatives seem to have trouble understanding this concept. (See, for example, the oft-repeated complaint that a Christian majority has a right to a Christian government, how habeas corpus doesn't apply to people if they're accused of bad enough things, any rant on 'activist judges', etc.) It's depressing that Hillary seems to be encouraging that point of view.

"Anybody who committed a crime in this country or in the country they came from has to be deported immediately, with no legal process. They are immediately gone,"

Sounds good to me. This position is popular with latinos and with those serious about solving the illegal alien problem.

First of all you have to make political room for reform by getting rid of the poisened apples, ie criminals, welfare cheats, etc. Being firmly against the bad guys makes it politically possible to deal fairly with the good guys.

Being weak on illegal alien criminals and welfare cheats will doom any chance for a decent solution. So not only is this politically smart campaign wise, it is also builds credibility for Hillary Clinton on the hot button issue concerning reform.

If she can solve the problem of criminals and cheats then people will be more willing to accept solutions that solve the problem of decent people having no papers.

Another way to do this is to promise to 'build a wall'. But this idea has been so discredited by the Bush administration that it is is not quite as useful. Promoting secure borders can help, but no one will accept being walled off on this side of the wall with the bad guys still among us.

I hope that whole thing was satire, ken. You know, sort of like how some people claim Ann Coulter is actually a liberal in hiding, making such ridiculous claims as to weaken the conservative right wing from within.

Hey ken? I worked for an immigration court last year. I've WRITTEN DEPORTATION ORDERS that immigration judges issued, after spending hours researching whether or not a conviction was a proper basis for deporting someone--it's not easy, figuring out the interaction between 50 different states' criminal laws and the federal immigration regs. Let me tell you, "no legal process" is not a sign of seriousness about the immigration process. Quite the opposite. It's exactly the sort of cheap demagoguery that got our immigration system where it is today: inhumane, ineffective, & above all, totally arbitrary.

In case it's not obvious, Katherine's examples of criminals who really should not be deported are far from implausible. I encountered a case very like the ones she describes during my clerkship year, out of less than a dozen INS deportation decisions that came across my desk.

The teenage girl in question was brought here at age 6 months or so, and found out around age 15 that her family had not filed the right paperwork to make her a citizen (very easy for non-English speakers to mess that up). She promptly applied, and the INS naturally did nothing for 2 years. Then she was accused, basically to satisfy an insurance company, as a co-conspirator in a petty fraud of which, realistically, she was actually a victim. She received a nominal community service sentence in juvenile court from a judge who probably wondered why on earth she was even there, and the INS promptly deported her. To a country in the middle of a civil war, where she didn't even speak the language and had no surviving relatives.

Reading the case file felt like falling into a Kafka novel. But hey, criminal --> deportation, why do we need process?

"No legal process" is going on my new list of ways to determine if your interlocutor is talking out his butt.

You cannot deport someone without engaging in a legal process. That's just how the system works, because you need to determine whether someone is here illegally & what penalty should result from whatever crime they've committed. Are they deported? Are they given the option for voluntary departure? Are they permanently banned from entering the U.S. legally? Were they a LEGAL permanent resident, and does the crime warrant deportation? Do they face torture if deported? Do we know where they're to be deported to? Do we have the facts straight?

All of these questions require the court system in order to determine the answers.

To say boldly "We don't need no process, just send the criminals home!" belies your complete lack of basic competence on immigration. How do you imagine this working? Arrest the guy, see if he has an accent, and drive him over a random border?

The third of Umberto Eco's typical features of fascism is "the cult of action for action's sake [...a]ction being beautiful in itself, it must be taken before, or without, reflection. Thinking is a form of emasculation."

This is the volksgeist Senator Clinton's applause line is appealing to.

This is a wonderful post, Katherine. Thanks for putting it up. That said, I don't relish my deepening discomfort about Hillary. But as the evidence mounts, it's hard not to feel a sense of profound anxiety about her candidacy. I suppose I'll continue to focus on the positives. Still, that gets more complicated as time passes. I really can't avoid the feeling that a moral dilemma is impending.

I also note that I've put almost every sentence in this comment in the negative. I suppose that's telling. Of what, I don't know.

The more I try to come to grips with it, the more Hillary's statement indicates a complete lack of understanding of some very basic principles of constitutional and administrative law. The issues with the 5th, 6th, 7th, and 14th Amendments notwithstanding, she'd have to revise the Administrative Procedure Act, the INS' enabling statute, and an enormous amount of caselaw requiring due process for deportation.

E.g., a quick search reveals the doctrine that, "[i]n the enforcement of these [deportation] policies, the Executive Branch of the Government must respect the procedural safeguards of due process." Galvan v. Press, 347 U.S. 522, 531 (1954). Also, "[t]he constitutional guarantee of equal protection under the law has been held applicable to aliens as well as citizens for over a century." Yeung v. INS, summarizing Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886).

In fact, Yeung actually holds that the precise policy that Clinton appears to be proposing is facially unconstitutional. In fact, the famed Accardi doctrine (the rule that undergirds U.S. v. Nixon) originates in an actual deportation case requiring a fair hearing prior to government action. If you throw out Accardi, you'd have to throw out Nixon, too.

In fact, there's a very good argument (an obvious argument, even) that summary deportation is a blatant violation of -- wait for it -- habeas rights.

And even if you get past all that, there's still the small matter of procedural due process rights under Goldberg and Eldridge, et al., as well as the actual statutory requirements of a hearing under the INA and the APA.

I'm not an immigration law expert by any means, but most of this is just first-year Conlaw stuff. The more I think about it, the less idea I have what the **** Hillary is talking about. I mean... she went to law school. This stuff's so basic that it's pretty difficult to miss.

"It is, as someone once said, a nation ruled by laws and not by men, and one cannot ignore the Constitution or deprive people of, for example, their right to due process, even if it's currently popular, or seems like a good idea, to do so. Many conservatives seem to have trouble understanding this concept."

Many conservatives? You write that as though liberals were better in this respect, rather than just desiring to ignore different parts of the Constitution.

Many people have trouble with that concept. It's a bipartisan problem.

Me? I think Hillary is just laying the groundwork for deporting her political enemies after she's elected.

Scanning it for specific names of people I know--either personally or by email--I'd say maybe 1/2 to 2/3 were there? But I could be way off on that (obviously, a name on the list is more likely to pop out at you than a name that's NOT there), & I may know a disproportionate # of nonprofit-y lawyers compared to the folks at the big firms, and/or a disproportionate # in Chicago. I'd guess that it's under half of everyone who's been involved in this litigation, because there are just a lot of habeas lawyers. Charley would know all of this better than me.

Of those who aren't, I'm guessing that most feel that none of the candidates have been vocal enough to justify publicly supporting them in your capacity as a Guantanamo lawyer, which is a pretty defensible conclusion. (I can't see Clive Stafford Smith as a big Clinton guy...) Oh, and some associates might feel weird about it.I'm under the impression that Charley is a slight Obama lean but don't quote me on that--I've never asked Margulies.

I'd say: "many more habeas lawyers endorse Obama than any other candidate" is a reasonable summary. "Habeas lawyers endorse Obama with one voice" is not.

Now I just need to figure out on what planet having an opinion that differs from Hillary Clinton's is undemocratic.

It isn't having a different opinion that is undemocratic. The argument that when a politician elected by voters to serve them pays attention to those voter's desires, that this is something to be feared - that is profoundly undemocratic.

And building up a straw man argument to portray those in favor of war as ignorant rubes, that is profoundly undemocratic.

Here is what is to be feared, according to Katherine: "Voters in 2002 want vengeance for September 11 on whichever Muslim country is convenient? Well, you better vote for the war".

Yes, that is the only reason that one could have been in favor of the war, isn't it? And of course it is the job of politicians to ignore the wishes of their idiotic constituency and pay attention to those Very Serious People whose desires should be attended to instead, am I correct?

I mean to think that a politician - a politician! - might take into consideration the attitudes of the electorate! The horror!

I never said that this is what *I* think of the voters. In most of these cases, I think that an awful lot of voters: (1) are understandably busy with their own lives, have not thought these issues through in any kind of detail, & are not fully aware of the likely consequences of these policies because they don't know the people affected; (2) might be persuadable--but they won't be persuaded if they only hear the conservative side of the argument; (3) even if they're not persuadable, are not especially likely to throw you out of office if you respectfully explain that you don't agree on this one & vote your conscience.

That's an over-generalization: in plenty of cases people do fully understand the issue & just flat-out disagree with me, & anyone as liberal as I am would have a hard time holding office. But I think there's a default assumption in D.C. that the American is a lot dumber & meaner than it actually is.

1) explains most of it. Most Americans don't understand immigration well enough to have an informed opinion on it. It's like asking a third-grader what she thinks about calculus. That doesn't mean Americans are dumb; it just means that chances are, the intricacies of immigration law have never been relevant to their lives and so saying "so, your husband married you -- that means he's a citizen, right?" doesn't strike them as wrong. It is wrong, and when they vote for Someone To Do Something About All Those Immigrants, they don't even realize they're affecting millions of law-abiding human beings.

But that's *more* reason, not less, for a politician worthy of leading a free people to take the time to educate them. Even Giuliani, he of the might-as-well-tattoo-9/11-on-my-head school of campaigning, explained to Dobbs that working illegally in fact *wasn't* a crime, and he knew so because he had been a prosecutor. Clinton's "no legal process" doesn't do anyone any favors. How hard would it have been to say simply that she favors deporting violent criminals (a provision already sanctioned by U.S. law?)

Clinton's comments are shabby both because because of her contempt for the rule of law and because they are a betrayal of the basic principles of human rights. She is just pandering to the right wing view that Bad People Shouldn't Have Rights. (And that principle leads on almost inexorably to People We Disapprove of Shouldn't Have Rights).

Maybe some of the pro-Clinton feminists (if there are some remaining) should be asking her: so if a female immigrant has been convicted in Saudi Arabia of immorality she should be sent back there without hesitation? So a gay immigrant should be sent back to the country in which they may have been 'guilty' of homosexual activity?

The argument that when a politician elected by voters to serve them pays attention to those voter's desires, that this is something to be feared - that is profoundly undemocratic.

The US is not a democracy. It's a constitutional republic.

This places some curbs on the "will of the people". Even if the vast majority of the public wants to do something that violates the Constitution, government is bound to comply with the constitution rather than what people demand at that moment.

If people really, really want something that is not allowed by the Constitution, the Constitution can be changed. It's inconvenient to do so, and requires a lot of folks to really want the change, but IMO that's a good thing.

In the case at hand, Clinton is calling for a policy that seems to violate a number of basic human rights that are specifically enumerated in the Constitution. I think a brief consideration of the history of, say, the last 100 years will provide lots of examples of why that is a very, very bad idea, no matter how appealing.

The whole arrangement may seem elitist as hell, but it's actually worked pretty well so far. Especially compared to most other places. I'd think twice before messing with it too much.

1. government by the people; a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system.

Emphasis mine.

And no, voting to go to war did not violate the constitution, and if it did, there are courts to decide that. The argument put forth is that a politician doing the will of the people is something to be feared. That is profoundly undemocratic, in the dictionary definition of the word.

So tell us, Charley, when the lawmakers are not held accountable by the courts, who will hold them accountable?

Not the people - that would be something to fear, would it not? Although perhaps that fear finds its fullest expression among those who will object should anyone dare to describe America as a democracy...

The argument put forth is that a politician doing the will of the people is something to be feared.

No: the argument put forth is that "the will of the people" is not, in itself, a sufficient justification for a politician to do anything. One would have thought this was blindingly obvious -- the segregation example above is particularly well-taken -- but apparently not.

What is blindingly obvious is that some of the examples Katherine gives are well outside the realm of the segregation example, but instead are simply examples where politicians pursue legal and legitimate policies with which she disagrees. I am not taking a position here on whether politicians are justified in violating the law when the electorate desires it. But if you are arguing that even when acting both within the law and with the approval of the electorate, segregationist politicians were unjustified in their actions then you, too, are making a profoundly undemocratic argument.

For example, no one is arguing that failing to take up the issue of racial disparity in drug sentencing is illegal. If voters do not consider that issue important, and a politician in turn does not consider it important enough to comment on....well that is what Katherine fears, according to her post.

But if you are arguing that even when acting both within the law and with the approval of the electorate, segregationist politicians were unjustified in their actions then you, too, are making a profoundly undemocratic argument.

To say boldly "We don't need no process, just send the criminals home!" belies your complete lack of basic competence on immigration. How do you imagine this working? Arrest the guy, see if he has an accent, and drive him over a random border?

This is probably a good working description of the system we have now. ICE (immigration) has trained local jail staff to go through and put holds on guys with spanish names and transport them to a federal detention nearby to be deported with almost no checks. I really don't know what the best solution here is, but less process is certainly not the answer.

Me? I think Hillary is just laying the groundwork for deporting her political enemies after she's elected.

Well, 'Rush Limbaugh, political prisoner' does kinda have a nice ring to it.

So, we can't say anything is wrong unless a majority of the population agrees with us?

You can say whatever you want. You can even argue that we should fear that politicians might pay attention to the desires of the voters. If you do the latter, you are taking an anti-democratic position.

So you support Japanese American concentration camps, too?

There are many policies enacted by politicians today that I do not support, but which have the support of a majority of the electorate. And if you look at the exceptions rather than the rule, it is quite easy to come up with situations that reflect badly on any system of government. But that does not really have much to do with my argument, as stated above.

But if you are arguing that even when acting both within the law and with the approval of the electorate, segregationist politicians were unjustified in their actions then you, too, are making a profoundly undemocratic argument.

No, I'm making an argument that "democracy" does not equal "strict majoritarian rule". This is the point of the definitional argument above, which you seem to have overlooked in your conflation of the two notions of democracy.* Otherwise, you might as well scrap the Bill of Rights and be done with it; the masses will, inerrantly and democratically, lead us to glory.

After all, it worked for the Communists.

And, for the record, if you're arguing that the segregationist politicians were justified in pursuing their policies simply because they were legal**, then you're both undemocratic and a racist to boot. Might I suggest you reconsider?

* There's a reason people were being finicky about distinguishing between a constitutional republic and a democracy. It's a distinction worth preserving if you want to bandy about allegations of being "undemocratic", fwiw.

** BTW, it's kind of stupid to talk about legality in these contexts, since the entire point is that the corrupting ideology was legalizing its corruption. But I don't have time to demolish that particular frame.

I am not taking a position here on whether politicians are justified in violating the law when the electorate desires it.

Why not? Is that really a tough question for you?

but instead are simply examples where politicians pursue legal and legitimate policies with which she disagrees.

BTW, a quick list of questions for now_what, just to make sure I understand that the only measure under which a politician should be judged as "democratic" -- or perhaps judged at all? -- is whether their policies are a) popular (i.e. a majority of people support them) and b) legal. The following are in rough chronological order.

1) Slavery in the United States, until the Civil War.

2) Segregation/Jim Crow 1876-1964.

3) The persecution of the Jews in Germany 1933-1939.

4) The internment of the Japanese in WWII.

[I'll hold off on the Holocaust because it was never put to a referendum.]

5) The redistribution of the land under the Chinese Communists 1949-1958.

All of these policies were both a) popular and b) legal. Is it your contention, then, that these were democratic? Is it your contention that they were justified? And would you mind explaining the reasons behind your answers?

just to make sure I understand that the only measure under which a politician should be judged as "democratic" -- or perhaps judged at all?

I generally do not judge others, as I fully realize that when the situation is reversed, I will come up short. I prefer to make statements that I believe to be logically correct under the assumptions I am making.

As for the quiz, how about you play along yourself? Of the situations above, which ones meet the following criteria:

government by the people; a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system

Offhand I would say that 1 and possibly 2 would not meet the definition at all as the electoral system was exclusionary and not free. 4 comes closer.

I am not familiar enough with the particulars to comment on the other two.

"No, I'm making an argument that 'democracy' does not equal "strict majoritarian rule". "

That doesn't strike me as a clearly correct argument, Anarch, simply because words do have multiple legitimate usages and interpretations.

Your argument seems to require that only one interpretation is correct, and that's what strikes me as the problem.

Similarly, if now_what were to, or is, argu[ing] that now_what's interpretation of what "democracy" means is the only legitimate interpretation, that would be problematic, as well.

But I see both usages used a lot. What strikes me as more useful is to simply agree or disagree on a usage, and proceed from there, rather than play the game of dueling authorities and assertions.

Personally, I think there's a useful distinction to be made between a pure democracy, i.e., a pure majoritarianism, and a republic, a representative state, while I also think, without seeing any contradiction, that speaking casually of the USA as a "democracy" is, in most context, not a statement that should reasonably be misinterpreted as a claim that the U.S. is a pure, non-representative, democracy.

now_what, when you accuse Katherine of making an anti-democratic argument, it looks more like you are trying to avoid dealing with the reasons why Katherine has come to this conclusion (and be warned, I think you would be hard pressed to find anyone who understands what the current situation is better than Katherine does) in order to try and undercut position with a rhetorical attack. I would urge you (and Xenyon, who is of a similar vintage to you and seems to be equally knowing of Katherine's output in this area) to look thru the archives and see her writings on the subject. In many cases, she probably has better and more detailed knowledge of things than the vast majority of our legislators have. So the notion that these elected officials can impose what they believe they are being directed to by the majority of the population when they are (and quite possibly choose to be) ignorant of the actual facts in these cases is somehow more in keeping with what democracy should be and Katherine's comments are a threat to democracy is really bass-ackwards.

Gary: That doesn't strike me as a clearly correct argument, Anarch, simply because words do have multiple legitimate usages and interpretations.

That's a perfectly fair point (and one which I raised upthread). The issue is that while "democracy" is a multivalent term, I agree, "undemocratic" really isn't, inasmuch as it has meaning at all. This is a classic example of a dictionary flame, though I can't remember which particular subvariety it is. To smear your opponent:

1) Pick something they oppose (stripping people of their rights without trial)

2) Find a word, say flibbertigibbet, that has multiple meanings: one of which is rare and denotes something crazy, another of which is mainstream and denotes something we all agree is good ("democracy", contrasting "strict majoritarianism/mob rule" with "constitutional republic")

3) Show that what they oppose satisfies meaning #1 of flibbertigibbet

4) Claim that they are therefore against flibbertigibbet in general, relying on the common usage of meaning #2 for the smear.

"Democracy" is one of the key words in this game, as is "liberty", "capitalism", and so forth; basically any word which has both a moderate/mainstream and extremal/technical meaning will suffice. My rule of thumb on such matters is that, if you can't replace the swing word with one of its meanings and get a consistent argument which is equally damning, the original argument is bunk. This is exactly what's happened here; arguing that, say, segregation was "democratic" because it happens to have been both popular and legal is true in meaning one -- that is, it was legitimate under the rules of strict majoritarianism -- but complete crap as a smear because it relies on connotations of meaning two which simply weren't witnessed. If now_what picks a definition of "democratic" and sticks with it, that would be fine; it's this constant vacillation between the two meanings that I find distasteful.

now_what: As for the quiz, how about you play along yourself? Of the situations above, which ones meet the following criteria...

The problem is that I was talking about situations, but you're talking about systems, the distinction being one of the reasons why I asked about those five examples. You said upthread that all that was required for a policy to be democratic was that it be both popular and legal; I gave you five examples of policies that were both, none of which you seemed to find justified. This suggests that perhaps your carelessness is having real consequences in your moral and political calculus.

I should also add that it's quite funny that you've now said the following:

But if you are arguing that even when acting both within the law and with the approval of the electorate, segregationist politicians were unjustified in their actions then you, too, are making a profoundly undemocratic argument.

and

Offhand I would say that [slavery] and possibly [segregation] would not meet the definition [of democratic] at all as the electoral system was exclusionary and not free.

You're simultaneously making both a pro- and, by your own lights, anti-democratic argument for the same policy which you're both disavowing and castigating others for disavowing. That's a pretty mixed message there.

And in case it's not clear: I normally have no problem with people calling the United States a democracy because, by any casual use of the word, it is. It's the switching between the technical and the non-technical meanings, and the associated dictionary flames therein, that I'm calling you out on.

[In the spirit of comity: of the five policies I mentioned, I would say that a) none of them were democratic, though all were popular, while b) policies 1 and 2 took place in systems that one might call an "exclusionary democracy", a constitutional republic with a de facto/de jure disenfranchised minority. YMMV.]

(and be warned, I think you would be hard pressed to find anyone who understands what the current situation is better than Katherine does)

Good old argument from authority. When all else fails.

In many cases, she probably has better and more detailed knowledge of things than the vast majority of our legislators have

She knows, better than the politicians, what their constituents desire? She should run for office, then.

You said upthread that all that was required for a policy to be democratic was that it be both popular and...

No, I did not. Where did I ever use the word popular? Show me. Carelessness, I believe you called it. I try to be careful with my words. Please make a small effort to avoid misquoting me, if it is not too much trouble.

I normally have no problem with people calling the United States a democracy

How very very charitable of you. We, as the citizens of the United States are oh so pleased that you allow us this small gratitude.

Argument from authority. Interesting notion, given that you are willing to use the imprimatur of elections to confer expert standing on decisions made by legislators. Honestly, I would familiarize myself with Katherine's (and other bloggers here) output on the subject if you want to discuss this topic on this list.

now_what: Where did I ever use the word popular? Show me. Carelessness, I believe you called it. I try to be careful with my words. Please make a small effort to avoid misquoting me, if it is not too much trouble.

I didn't misquote you, I glossed you, and in fact noted it explicitly here. You're free to dispute the glossing if you like...

You need only read the comment thread above to see that the two are used differently.

...but you'll have to do a better job than that. I've read the comment thread and frankly, I can't see any difference. In what sense -- and especially in what "democratic" sense -- can a policy be "the will of the electorate" without it being "popular" in the sense I explicitly elaborated ("a majority of people support them")?

Because, bluntly, the assertion that the will of the electorate need not be represented by the majority of people? That is -- by definition -- undemocratic.

[Anyone who wants to invoke "Liberal Fascism" here, be my guest. I'm not that cruel.]

How very very charitable of you. We, as the citizens of the United States are oh so pleased that you allow us this small gratitude.

They, the black citizens of the United States under segregation and slavery -- if they'll allow an uberhonky such as I the liberty -- are ever so pleased at your gratitude. Especially the part where you insinuated that segregation was "democratic".

[And did you seriously miss the entire point of that sentence? Yeesh. That's just sad.]

You are not democrats, and, in fact, react to democratic ideas with vehemence. There's not much more to discuss here.

No, the problem is that you don't know what "democratic" actually means, you got pissy when you got called on it, and now you're on the ass end of a pile on. Which sucks, I'll grant you, but could have been avoided if you had simply clarified your position when asked, accepted a measure of nuance in your arguments, and stopped with the ridiculous accusations and self-righteousness.

You're perfectly welcome to return any time you'd like, btw, and no-one here will bear you any animosity... but for the love of all that's holy, you're gonna have to step up your game if you want to avoid this in future.

Clinton calls for the immediate deportation, without process, of anyone who has committed a crime in this country or another country.

I'll throw her a bone and assume that she meant "any resident alien" for "anyone", and "convicted" for "committed".

By the rules we've all agreed to live by -- the Constitution and the laws passed by Congress -- you can't do that.

If 51%, or 85%, or 100% of the people in the country wake up one day and decide that, after all, that's exactly what they'd like to do, they can't. Because it doesn't comply with the rules we've all agreed to live by.

Want to do something different, change the rules. Change the laws, or change the Constitution.

That's the way we do things here. If that strikes you as "undemocratic", so be it.

No, the problem is that you don't know what "democratic" actually means

The problem is that we all know what it means, some of us think it is a good thing and others of us disdain the very idea of it but don't come right out and say so.

At the end of the day, the average person gets to decide what policies are in their best interest, and anything else is tyranny...and any number of voices in this thread are attempting to justify what I see as tyranny, plain and simple.

If politicians stopped doing what Katherine fears - if they stopped paying subservient attention to what their bosses, the proles, want - we would have a problem much larger than anything she complains about in her post.

Anarch,
I, on the other hand, am willing to admit my ignorance. What exactly do I mean when I use the word 'democracy'? I would love to have now_what enlighten me.

I'd also like him to tell me what I want for lunch, cause that's another thing that I can never decide.

It must be great to know what everyone means, independent of their previous writings, as semantics is a far-overrated field and the world eagerly awaits the services of mind-readers with the kind of confidence and elan that now_what displays.

Don't be too sure that she doesn't mean to follow through on that applause line. Why, that’s almost exactly the position the Clinton Justice Department took in cases under the Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration reform and Immigrant Responsibility Act of 1996--two execrable pieces of legislation that Bill promoted and signed which contained all sorts of awful provision like deporting aliens convicted of crimes with no judicial review. The Clinton DoJ took the position in litigation (full disclosure, I was involved) (a) that once the AG decided that an alien gets the boot for having committed crimes (and some of these people were getting deported because new technology allowed the feds to unearth 20+-year-old convictions for pot possession), that was it, no judicial review and no habeas for you! And (b) that the AG had no discretion at all to let a “criminal alien” stay in the country based on longstanding family ties, age of the conviction, etc. On (a), never mind that your AG might get the facts wrong (say, like attributing a conviction to the wrong David Ramirez, when there are several thousands of them in any given state). And on (b), oh give me a break, you can’t even stand the thought of having the power to make discretionary exceptions. Blarf.
But you know, the forces of good achieved an improbable SCOTUS victory on both fronts in INS v. St. Cyr, which rebuked the Clinton administration on both fronts, holding that no you didn't really strip habeas relief (as Reno had argued, and doesn't that sound familiar), and if you did, the statute would probably be unconstitutional as that would cut off all avenues for judicial review of Executive detention (which apparently is not the oal only of the Bushies), and (b) Janet Reno was wrong to interpret the law as depriving her of even a discretionary power to make exceptions for those who have longstanding family ties, good jobs, homes, and very distant-in-time convictions. So, Hillary wants to legislatively overrule the Supremes and reverse that one victory over one of the many bad things that Clinton did in his effort to save the party by turning it into the Republican Party, eh? I hate these people so much.